United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 97-1528

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George B. Harris,

Appellant,

v.

Michael Bowersox; State of

Missouri,

Appellees.

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Appeal from the United States

District Court for the

Western District of Missouri.

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Submitted: January 14, 1999

 Filed: July 13, 1999

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Before LOKEN, HANSEN, and MORRIS SHEPPARD ARNOLD, Circuit Judges. 

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HANSEN, Circuit Judge.

A Jackson County, Missouri, jury convicted George B. Harris of first degree

murder and armed criminal action. Harris was sentenced to die for the crime.

Following an unsuccessful motion for postconviction relief, the Supreme Court of

Missouri affirmed Harris's conviction and sentence. See State v. Harris, 870 S.W.2d

798 (Mo.) (en banc), cert. denied, 513 U.S. 953 (1994). Harris now appeals the district
1

 The Honorable Fernando J. Gaitan, Jr., United States District Judge for the

Western District of Missouri.

2

court's1 order denying his petition for a writ of habeas corpus filed pursuant to 28

U.S.C. § 2254 (1994). We granted a certificate of appealability as to four of the many

grounds Harris raised in the district court. Although our reasoning differs from that of

the district court in some respects, we affirm the district court's judgment denying

habeas relief.

I.

The following facts are taken principally from the opinion of the Supreme Court

of Missouri. On March 11, 1989, George Bernard "Baby" Harris was on a lucky streak

shooting craps. Having some money to spare, Harris agreed to a "pawn" arrangement

in which Harris gave another man $500 in exchange for two automatic weapons,

namely an Uzi and a .45 caliber Thompson submachine gun. Harris initially placed the

guns in the trunk of his car. While returning to the crap game, Harris became worried

that someone might steal the guns. Harris asked Michael Taylor to keep the guns for

him. Taylor agreed, and Harris proceeded to Taylor's house.

Michael Taylor shared his house with three other men, Rodney Butler, Ross

Talliferro, and Stanley "Hank" Willoughby. When Harris arrived at Taylor's house, he

handed Willoughby a box containing the machine guns. As Willoughby walked back

toward the house, Butler told Willoughby not to bring the guns into the house.

Willoughby then handed the box to Cortez and Anthony Taylor, Michael Taylor's

younger brothers. Willoughby told Cortez and Anthony to hide the guns near the

house. Harris left, and the younger Taylors hid the box under some bushes in the

backyard without telling Willoughby the location.
3

At around 8:00 p.m. that evening, Harris returned and told Michael Taylor that

he wanted his guns. Taylor told Harris he did not know where the guns were stowed,

but Harris insisted that he needed his guns immediately. Taylor told Harris to wait for

Willoughby to return, and then to ask Willoughby about the guns. Some time later,

Harris yelled for Michael Taylor to come downstairs. When Taylor came down, he

found several people in his house including Harris, Willoughby, Talliferro, and Jaorlath

Potts (also known as Rudi). Harris again asked Taylor for his guns, and Taylor again

told Harris to take up the issue with Willoughby. Willoughby explained to Harris that

he did not know where Anthony and Cortez Taylor had hidden the weapons. Harris

insisted that he wanted the guns immediately, and Willoughby went outside in an effort

to locate the weapons. Willoughby could not find the guns and returned about five

minutes later. Rodney Butler then took a turn at finding the guns. Sometime during the

course of events, Harris was heard to say that he was going to kill Willoughby. Also,

sometime that day, Harris told Taylor that he wanted the machine guns to conduct a

"ride-by" shooting in retaliation for somebody calling Harris a "punk."

By this point in time most of the people had vacated the living room, only

Michael Taylor, Willoughby, and Harris remained. Willoughby told Harris that Harris

would have to wait for Anthony and Cortez Taylor to get the guns. Harris again

insisted on getting his guns immediately. Willoughby said, "Well, I can't help you."

Harris, 870 S.W.2d at 805. Harris then got up from a chair, drew his .41 caliber

handgun, and shot Willoughby in the face. Willoughby staggered next door but died

before reaching the hospital. In the meantime, Butler located the guns and placed them

on the porch at the house next door and ran inside.

Harris took the guns and left, ending up eventually at the apartment of his

girlfriend Sabrina Lowe. Taking the handgun and two machine guns with them, Harris

and Lowe then went to a bar called the Champagne Lounge. The Supreme Court of

Missouri opinion states that Harris told Lowe that he was looking for Rudi (who we

know from the record is Jaorlath Potts) and intended to kill him. See id. Our review
4

of Ms. Lowe's testimony reveals that Harris went to the Champagne Lounge to kill a

man named Dale. When Harris was unable to find Dale, he went looking for Rudi. On

March 13, 1989, Harris, Sabrina Lowe, and two others fled Kansas City in a van,

heading east toward St. Louis. The police caught up with Harris during this trip, and

arrested him for committing an armed robbery in Columbia, Missouri. The police also

found the gun Harris used to kill Willoughby.

A jury convicted Harris of the first degree murder of Willoughby. During the

penalty phase, the jury found five aggravating circumstances, and Harris received a

death sentence. With the aid of new counsel, Harris filed a motion for postconviction

relief pursuant to Mo. Sup. Ct. R. 29.15. The postconviction court denied the motion.

On appeal, the Supreme Court of Missouri affirmed Harris's conviction and sentence,

and affirmed the denial of postconviction relief. After exhausting his state court

options, Harris filed a section 2254 habeas petition in the district court, raising some

17 claims (exclusive of subparts). In an order dated November 6, 1996, the district

court denied Harris's petition in all respects. The court found several of the claims

were not properly preserved and thus were procedurally defaulted. The court

addressed the merits of each preserved claim, but ultimately concluded that none of the

claims warranted habeas relief. The district court denied Harris's motion to alter or

amend its prior judgment. This appeal followed.

II.

Initially, we address the scope of our appellate review. On March 16, 1998, we

entered an order granting Harris a certificate of appealability as to four specific issues.

In particular, we limited our review to the following: (1) the constitutionality of the

depravity of mind aggravating circumstance instruction used in Harris's case; (2) the

constitutionality of Missouri's reasonable doubt instruction; (3) the constitutionality of

the admission of evidence concerning Harris's alleged plans to conduct a drive-by

shooting, and his going to the Champagne Lounge for the purposes of killing another
5

person; and (4) whether Harris's trial counsel was ineffective for failing to identify,

locate, and present the testimony of a potential defense witness named Ben Brown.

Despite our prior order, Harris's brief includes issues beyond the scope of our

certificate of appealability. Notwithstanding this fact, we limit our appellate review to

the issues specified in the certificate of appealability. See Harris v. Bowersox, No. 97-

1528, order (8th Cir. May 29, 1998). See also Carter v. Hopkins, 151 F.3d 872, 874

(8th Cir.), cert. denied, 119 S. Ct. 524 (1998). In view of this decision, we deny as

moot the state's motion to strike those portions of Harris's brief that raise issues not

included in our certificate of appealability. See Carter, 151 F.3d at 874 n.5.

III.

"In determining whether to grant habeas relief, we review the district court's

conclusions of law de novo, and its findings of fact for clear error." Bounds v. Delo,

151 F.3d 1116, 1118 (8th Cir. 1998). Additionally, because Harris filed his habeas

petition prior to the enactment of the Antiterrorism and Effective Death Penalty Act

(AEDPA) of 1996, Pub.L. No. 104-132, 110 Stat. 1214, 1218-21 (Apr. 24, 1996), and

to our knowledge Missouri has not yet qualified under 28 U.S.C. § 2261 (1996), we

review the state court's factual determinations under the pre-AEDPA standard. See

Bounds, 151 F.3d at 1118 n.3. Under that standard, state court fact-findings "are

generally presumed correct." Id. at 1118 (citing 28 U.S.C. § 2254(d) (1994)).

A. Depravity of Mind Aggravating Circumstance Instruction

Under Missouri law, in first degree murder cases for which the death penalty is

possible, the jury considers specific statutory aggravating circumstances, see Mo. Rev.

Stat. § 565.032.2 (West Supp. 1999), any one of which, if found by the jury, is

sufficient to sustain a death sentence. During the penalty phase of Harris's murder trial,

the trial court presented the jury with five possible aggravating circumstances based on
2

 The statutory depravity of mind aggravating circumstance reads as follows:

"The murder in the first degree was outrageously or wantonly vile, horrible or inhuman

in that it involved torture, or depravity of mind." § 565.032.2(7).

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§ 565.032.2. The jury found all five circumstances present. We granted a certificate

of appealability as to the depravity of mind aggravating circumstance instruction.

Aggravating circumstance number 4, as contained in Instruction 17, reads as

follows:

Whether the murder of Stanley "Hank" Willoughby involved depravity of

mind and whether, as a result thereof, the murder was outrageously and

wantonly vile, horrible, and inhuman. You can make a determination of

depravity of mind only if you find that the defendant killed Stanley

"Hank" Willoughby as a part of defendant's plan to kill more than one

person and thereby exhibited a callous disregard for the sanctity of all

human life.

(J.A. at 287.) Harris contends that this instruction is unconstitutionally vague. The

district court agreed but denied relief, concluding rather that any error was harmless

error. As we explain below, while we agree with the district court's harmless error

analysis, we do not believe the instruction is unconstitutionally vague.

We agree with the district court's conclusion that Missouri's statutory definition

of depravity of mind,2 standing alone, does not pass constitutional muster. See

Sidebottom v. Delo, 46 F.3d 744, 755 (8th Cir.), cert. denied, 516 U.S. 849 (1995).

As the district court aptly recognized, however, "a state supreme court may salvage a

facially-vague statute by construing it to provide the sentencing body with objective

criteria for applying the statute." Mathenia v. Delo, 975 F.2d 444, 449 (8th Cir. 1992)

(quotations omitted), cert. denied, 507 U.S. 995 (1993). The district court concluded

that a proper limiting construction had not been applied in Harris's case, but denied

habeas relief after conducting a harmless error analysis. 
3

 The United States Supreme Court recently reemphasized the so-called Brecht

harmless error standard for use in habeas proceedings. Calderon v. Coleman, 119 S.

Ct. 500, 502-03 (1998) (discussing Brecht v. Abrahamson, 507 U.S. 619 (1993)). The

Brecht harmless error standard is admittedly lower than the standard we employed in

Williams (which reflects Chapman v. California, 386 U.S. 18 (1967)). Under Brecht,

an error is harmless unless the court finds "that the error, in the whole context of the

particular case, had a substantial and injurious effect or influence on the jury's verdict."

Coleman, 119 S. Ct. at 504. In Coleman, unlike the present case, the state court had

conducted its own harmless error analysis. We need not decide today whether

Coleman requires us to abandon the standard articulated in Williams because we

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With all due respect to the experienced district court, we conclude that the state

court properly limited the instruction by requiring that the jury find a plan to kill more

than one person in order to satisfy the depravity of mind instruction. After the district

court decided Harris's case, we upheld the validity of a nearly identical instruction in

Ramsey v. Bowersox, 149 F.3d 749, 754 (8th Cir. 1998), cert. denied, 119 S. Ct. 1083

(U.S. 1999). In Ramsey, the Missouri court gave "a limiting construction [to the

depravity of mind instruction] by instructing the jury it could find depravity if it found

[the defendant] . . . planned to kill more than one person, and had a callous disregard

for human life." Id. We are bound by Ramsey and therefore conclude that no

constitutional error resulted from the depravity of mind instruction used in Harris's case.

In fact, during Harris's direct appeal, Missouri's Supreme Court compared the

instruction used in Harris's case to the "nearly identical instruction" it had previously

found constitutionally sound in Ramsey's case. Harris, 870 S.W.2d at 813 (discussing

State v. Ramsey, 864 S.W.2d 320, 328 (Mo. 1993) (en banc)).

Moreover, even assuming that the instruction is unconstitutionally vague, we

believe, like the district court, any resulting error is harmless beyond a reasonable

doubt. See Williams v. Clarke, 40 F.3d 1529, 1540, 1541 (8th Cir. 1994) (holding that

federal appellate courts "are authorized to engage in constitutional harmless error

analysis in the first instance" when a state appellate court does not undertake such an

analysis, and that such error must be harmless beyond a reasonable doubt),3cert.
believe the differences between the Brecht standard and the Williams / Chapman

standard are inconsequential in Harris's case. Simply stated, the alleged error is

harmless under either standard.

4

 In contrast, a "weighing" state typically requires the decision maker to weigh

the aggravating circumstances "against any mitigating circumstances to determine

whether the death penalty is justified." Williams, 40 F.3d at 1535 (discussing

Nebraska's weighing statute, Neb. Rev. Stat. § 29-2522).

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denied, 514 U.S. 1033 (1995). Missouri is a "nonweighing" state—only one

aggravating factor need be present in order to validly impose a death sentence.4 See

Ramsey, 149 F.3d at 754-55; Sloan v. Delo, 54 F.3d 1371, 1385-86 (8th Cir. 1995),

cert. denied, 516 U.S. 1056 (1996). In Harris's case, the jury found four other,

unrelated aggravating circumstances. In particular, the jury found that Harris had two

first degree robbery convictions and one conviction for armed criminal action. See

Mo. Rev. Stat. § 565.032.2(1). The jury also found that Harris murdered Willoughby

for the purpose of receiving something of monetary value. See id. § 565.032.2(4).

Therefore, even if the depravity of mind instruction used in Harris's case was

unconstitutionally vague, the jury's penalty phase verdict is reliable beyond a

reasonable doubt because the jury found several other aggravating circumstances. See

Stringer v. Black, 503 U.S. 222, 232 (1992); Ramsey, 149 F.3d at 754-55.

In sum, we conclude that the depravity of mind aggravating circumstance

instruction applied in Harris's case is constitutionally sound, and even if it were not, any

resulting error is harmless beyond a reasonable doubt.

B. Missouri's Reasonable Doubt Instruction

Harris also claims that Missouri's reasonable doubt instruction unconstitutionally

reduces the standard of proof necessary to support a criminal conviction. We have

recently addressed similar attacks on the Missouri instruction, each time concluding
5

 In Teague v. Lane, a plurality of the United States Supreme Court held that as

a general rule, habeas corpus petitioners cannot gain the benefit of a new rule of

constitutional procedure unless the rule is dictated by precedent existing at the time the

petitioner's conviction became final. 489 U.S. 288, 301, 316 (1989).

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that such challenges are Teague-barred.5 See, e.g., Ramsey, 149 F.3d at 757-58;

Murray v. Delo, 34 F.3d 1367, 1382 (8th Cir. 1994), cert. denied, 515 U.S. 1136

(1995). Relying on these or similar precedents, the district court declined to entertain

the merits of Harris's attack on the instruction. Before this court, Harris asserts that his

claim is not Teague-barred because he bases his challenge on Supreme Court precedent

that was established before his conviction became final, namely Victor v. Nebraska,

511 U.S. 1 (1994). Harris's conviction became final after Victor, when the Supreme

Court denied his petition for certiorari. See Harris v. Missouri, 513 U.S. 953 (1994).

Moreover, contrary to the position taken in its briefs, Missouri conceded at oral

argument that Harris's particular challenge is not Teague-barred. Thus, we will address

the merits of Harris's challenge to Missouri's reasonable doubt instruction.

"The beyond a reasonable doubt standard is a requirement of due process, but

the Constitution neither prohibits trial courts from defining reasonable doubt nor

requires them to do so as a matter of course." Victor, 511 U.S. at 5. In assessing the

constitutionality of the Missouri instruction, we review the instruction as a whole to

determine if it correctly conveys to the jury the concept of reasonable doubt. Id. (citing

Holland v. United States, 348 U.S. 121, 140 (1954)). As we explain below, we believe

the Missouri instruction is constitutionally sound.

Harris's challenge focuses on the use of the words "firmly convinced" to describe

the concept of reasonable doubt. The relevant portion of the instruction used in Harris's

case reads as follows:

Proof beyond a reasonable doubt is proof that leaves you firmly

convinced of the defendant's guilt. The law does not require proof that
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overcomes every possible doubt. If, after your consideration of all

evidence, you are firmly convinced that the defendant is guilty of the

crime charged, you will find him guilty. If you are not so convinced, you

must give him the benefit of the doubt and find him not guilty.

(J.A. at 272.) (emphasis added). This standard is substantially similar to a reasonable

doubt instruction promulgated by the Federal Judicial Center. In relevant part, that

instruction reads:

"Proof beyond a reasonable doubt is proof that leaves you firmly

convinced of the defendant's guilt. . . . [I]n criminal cases the law does

not require proof that overcomes every possible doubt. If, based upon

your consideration of the evidence, you are firmly convinced that the

defendant is guilty of the crime charged, you must find him guilty. If on

the other hand, you think there is a real possibility that he is not guilty,

you must give him the benefit of the doubt and find him not guilty."

Federal Judicial Center, Pattern Criminal Jury Instructions, at 17-18

(instruction 21).

Victor, 511 U.S. at 27 (Ginsburg, J., concurring in part and concurring in the

judgment).

Several of our sister circuits have endorsed the same or a similar reasonable

doubt instruction. See, e.g., United States v. Brand, 80 F.3d 560, 566 & n.8 (1st Cir.

1996), cert. denied, 519 U.S. 1077 (1997); United States v. Conway, 73 F.3d 975, 980

(10th Cir. 1995); United States v. Williams, 20 F.3d 125, 131-32 (5th Cir.), cert.

denied, 513 U.S. 891, 894 (1994). Moreover, in Victor, Justice Ginsburg described

the Federal Judicial Center instruction as a "clear, straightforward, and accurate"

explanation of reasonable doubt. 511 U.S. at 26.

Harris contends, however, that differences of a constitutional dimension exist

between Missouri's instruction and the Federal Judicial Center's instruction. According
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to Harris, the Missouri instruction relies solely on the "firmly convinced" language to

define reasonable doubt, while the Federal Judicial Center instruction adds clarifying

language directing a jury to consider the "real possibility" of innocence. (See

Appellant's Br. at 17.) We find the differences between the two instructions

insubstantial.

Harris attempts to parse the Missouri instruction and force us to read selected

portions in isolation. Yet, as we have already stated, Victor requires us to review the

instruction as a whole to determine whether it adequately conveys the concept of

reasonable doubt. 511 U.S. at 5. When read as a whole, we believe it is entirely

unreasonable to conclude that the Missouri instruction relies solely on the words

"firmly convinced" to convey the meaning of reasonable doubt. The Missouri

instruction, like the Federal Judicial Center instruction, "has the virtue of using the

common phrase 'give him the benefit of the doubt'" in defining reasonable doubt.

United States v. Artero, 121 F.3d 1256, 1258 (9th Cir. 1997) (upholding Federal

Judicial Center, Pattern Criminal Jury Instruction 21), cert. denied, 118 S. Ct. 1089

(1998). We believe that "[m]ost jurors are likely to have spoken that way themselves,

when they mean 'I think something is probably true, but I'm not sure, so I'll give him the

benefit of the doubt.'" Id. In short, we find that the state's instruction adequately

conveyed the jury's obligation that it could convict Harris only upon finding him guilty

beyond a reasonable doubt. That is all that is required. Harris is not entitled to any

habeas relief based on the reasonable doubt instruction used in his case.

C. Bad Acts Evidence

Harris argues that he was deprived of due process of law when the trial court

allowed the prosecutor to comment upon and elicit testimony regarding certain

uncharged bad acts. The district court concluded that Harris failed to show how any

alleged error fatally infected the trial or undermined notions of fundamental fairness.

We agree with the district court.
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"Because questions concerning the admission of evidence are matters of State

law, our review of such questions in a habeas corpus proceeding is limited to

determining whether the defendant's constitutional rights have been violated." Rainer

v. Department of Corrections, 914 F.2d 1067, 1072 (8th Cir. 1990), cert. denied, 498

U.S. 1099 (1991). See also Parker v. Bowersox, 94 F.3d 458, 460 (8th Cir. 1996),

cert. denied, 520 U.S. 1171 (1997). Further, there is no due process violation simply

because a trial court admits evidence of a defendant's uncharged bad acts. McDaniel

v. Lockhart, 961 F.2d 1358, 1360 (8th Cir. 1992). A habeas petitioner

must show more than error requiring reversal on direct appeal to obtain

relief. He must show that the alleged error rendered the entire trial

fundamentally unfair—that there is a reasonable probability that the error

complained of affected the outcome of the trial—i.e., that absent the

alleged impropriety, the verdict probably would have been different.

Carter v. Armontrout, 929 F.2d 1294, 1296 (8th Cir. 1991) (internal quotations

omitted). See also Mercer v. Armontrout, 844 F.2d 582, 587 (8th Cir.) (noting that

habeas relief is available only if the alleged error "fatally infected the trial" and

deprived the petitioner of "the fundamental fairness which is the essence of due

process") (internal quotations omitted), cert. denied, 488 U.S. 900 (1988). In making

our fundamental fairness determination, we "review the totality of the facts in the case

and the fairness of the whole trial." McDaniel, 961 F.2d at 1360.

The general rule under Missouri law, like most jurisdictions, is that "evidence

of uncharged crimes, wrongs, or acts . . . is inadmissible for the purpose of showing the

propensity of the defendant to commit such crimes." Harris, 870 S.W.2d at 810

(internal quotations omitted). Also like most jurisdictions, Missouri's rule against

propensity evidence is subject to several exceptions. For example, the prosecution may

properly submit bad acts evidence that tends to establish "motive, intent, absence of

mistake or accident, or a common plan or scheme." Id. at 810. Missouri recognizes

an additional exception "for evidence of uncharged crimes that are part of the
6

 We use the terms "ride-by" and "drive-by" interchangeably. Michael Taylor

testified that "[a] ride-by is like when you ride by a certain place, you go by and shoot

it up, you know, or shoot them." (Trial Tr. at 787.)

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circumstances or the sequence of events surrounding the offense charged" in order "to

present a complete and coherent picture of the events that transpired." Id.

Broadly stated, Harris challenges the admission of evidence relating to (1) his

plans to conduct a ride-by6 shooting on the day he shot Willoughby, and (2) his going

to the Champagne Lounge to shoot someone after he shot Willoughby. We address

each of these challenges in turn.

1. Harris's Plans to Conduct a Ride-By Shooting

It was the state's theory that Harris's eagerness to regain possession of his guns,

and his anger with Willoughby for not quickly producing them, stemmed from his

desire to conduct a ride-by shooting. Consistent with this theory, during opening

statements the prosecutor commented that Harris wanted the machine guns "because

someone had called [Harris] a punk, and because of that he was going to ride down on

them, and do a drive-by." (Trial Tr. at 588.) As part of its case-in-chief, the state

provided evidentiary support to back up its theory of the case. Michael Taylor's

testimony on behalf of the prosecution included the following colloquy:

Prosecutor: Did Baby Harris ever tell you what he wanted these machine

guns for?

Taylor: He said something earlier about that he wanted to do a ride-by, he

wanted to show some guys that he wasn't a punk, that they think he

was a punk.

(Trial Tr. at 785.)
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It seems clear to us that the evidence of Harris's plans to conduct a ride-by

shooting not only completes the picture, as the state court concluded, it also provides

a motive for shooting Willoughby. We have discussed similar matters in the context

of the Federal Rules of Evidence. See, e.g., United States v. Phelps, 168 F.3d 1048,

1057-58 (8th Cir. 1999) (finding no abuse of discretion in admitting evidence relating

to a defendant's actions before and after a shooting); United States v. Luna, 94 F.3d

1156, 1162 (8th Cir. 1996) (holding that other bad acts evidence was admissible to

explain the government's theory of the case, as well as for showing the defendant's

motive for participating in an armed robbery); United States v. White, 645 F.2d 599,

602 (8th Cir.) (noting that evidence of other bad acts is admissible when it completes

the story of the crime on trial), cert. denied, 452 U.S. 943 (1981). In other words, this

evidence had substantial probative value beyond any propensity effect. While our

review is limited to constitutional issues, the prosecutor's comments and Michael

Taylor's testimony regarding Harris's plans to conduct a ride-by shooting were proper

matters for the jury's consideration. Therefore, we do not believe that the trial court

transgressed Harris's due process rights by allowing the jury to hear this evidence.

Indeed, the evidence was admissible.

2. The Incident at the Champagne Lounge

The prosecution presented the testimony of Harris's former girlfriend, Sabrina

Lowe, three times: first during its case-in-chief, then as part of its rebuttal, and again

during the penalty phase. During the prosecution's case-in-chief, Ms. Lowe's testimony

principally concerned Harris's flight from Kansas City and his eventual capture near

Columbia, Missouri. During the defense's case, however, Harris testified on crossexamination: (1) that he never went to Sabrina Lowe's apartment after shooting

Willoughby and that Ms. Lowe would have no way of knowing about the machine guns

(Trial Tr. at 903, 905); (2) that he never picked up his machine guns before leaving

Michael Taylor's house (id. at 902); and (3) that he did not go with Sabrina Lowe to

any bar to kill potential witnesses to the Willoughby homicide (id. at 905-07). To rebut
15

Harris's testimony, the prosecution returned Sabrina Lowe to the witness stand. Ms.

Lowe then testified that Harris came to her apartment the night of the Willoughby

murder, and that Harris wanted to go to the Champagne Lounge to kill someone. (Id.

at 939.) She also testified that the two machine guns were in the back seat of the car

as they drove to the Champagne Lounge. (Id. at 940-41.) According to Ms. Lowe,

Harris initially went into the bar but came out and was refused reentry by a bouncer.

(Id.) At this point, she and Harris went looking for Rudi (Jaorlath Potts) because Harris

was mad at Rudi. (Id. at 941.)

From our reading of the record, it is clear that the prosecution presented Ms.

Lowe's additional rebuttal testimony to refute Harris's contention that he never actually

picked up the machine guns and never went to Ms. Lowe's apartment. The legitimacy

of this use seems self-evident to us. It was the state's theory that Harris killed

Willoughby because he wanted immediate possession of the machine guns for a ride-by

shooting and Willoughby was not producing them fast enough. Harris testified that he

left the crime scene without stopping to pick up his guns, thereby undercutting the

state's theory. Ms. Lowe's testimony, therefore, was necessary to rebut Harris's defense.

Harris's motion for judgment of acquittal or in the alternative for a new trial virtually

concedes the propriety of this line of questioning. (See State Supreme Court Legal File

at 107.)

Additionally, the prosecution presented Ms. Lowe's rebuttal testimony to counter

Harris's denial that he went to the Champagne Lounge looking to kill a witness. When

asked whether they went to the bar "so that [Harris] could kill somebody," Ms. Lowe

responded, "Yes." (Trial Tr. at 939.) It appears to us that the prosecutor properly

offered Ms. Lowe's testimony to rebut Harris's claim that he never intended to kill any

witness. The probative value of such evidence is manifest—persons who kill in selfdefense desire to preserve eyewitness testimony, not eliminate it. Upon our review of

the totality of the guilt phase testimony, we believe that a reasonable juror could infer

that Harris went to the Champagne Lounge to kill a witness to the Willoughby
7

 It is not clear from Ms. Lowe's guilt phase rebuttal testimony whether Harris

physically possessed the machine guns or left them in the car when he approached the

Champagne Lounge. (See Trial Tr. at 940.) Her penalty phase testimony is

unambiguous—Harris took only a handgun into the bar. (Id. at 1054-55.)

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homicide. Only with the benefit of Sabrina Lowe's penalty phase testimony does the

strength of such an inference begin to wither.

During the penalty phase, Ms. Lowe testified that she and Harris went to the

Champagne Lounge looking for a man named "Dale." The name "Dale" was not used

during her guilt phase testimony. Upon our careful review of the entire trial transcript,

we believe that Sabrina Lowe's testimony supports the following conclusions regarding

the incident at the Champagne Lounge. She and Harris went to the Champagne Lounge

looking for a person named Dale, who is apparently not the same person as Rudi

(Jaorlath Potts), and who may or may not have been a witness to the Willoughby

murder. Harris did not take the machine guns into the bar.7 Upon being refused

reentry, Harris went looking for Rudi, eventually finding, but not killing, him. Although

the benefit of hindsight may weaken the tie between the Champagne Lounge and the

Willoughby murder, we cannot say that the admission of this arguably improper

propensity evidence necessarily means that a constitutional error occurred.

Given the long and celebrated history of the rule against propensity evidence,

one might argue that the general rule has constitutional qualities. In the federal context

we recently rejected such notions, at least in part. In United States v. Mound, we held

that Federal Rule of Evidence 413, subject to the strictures of Rule 403, is

constitutional even though Rule 413 allows the prosecution to introduce bad acts

evidence during its case-in-chief to show the propensity of sex offenders to commit

similar acts. 149 F.3d 799, 800-01 (8th Cir. 1998), cert. denied, 119 S. Ct. 842 (1999).

But see United States v. Mound, 157 F.3d 1153, 1153-54 (8th Cir. 1998) (Morris

Sheppard Arnold, J., dissenting from the denial of the suggestion for rehearing en banc)
17

(questioning the fundamental fairness of Rule 413 in view of "a centuries-old legal

tradition that views propensity evidence with a particularly skeptical eye").

We need not address the larger question of the constitutional status of the general

rule against propensity evidence because we find that even assuming it was an error to

admit the evidence of Harris's plans to kill someone at the Champagne Lounge, it did

not fatally infect either the guilt phase or the penalty phase of Harris's trial. See

Mercer, 844 F.2d at 587. 

First, the evidence relating to the Champagne Lounge does not cast doubt upon

the fundamental fairness of the guilt phase of Harris's trial. We have carefully reviewed

the record and believe there was overwhelming evidence of Harris's guilt. All of the

elements necessary to prove the crime were met irrespective of Ms. Lowe's testimony

regarding Harris's alleged plans to kill someone at a bar. Also, it is important to

understand the context surrounding Ms. Lowe's rebuttal testimony, which we have

already indicated created a reasonable inference that Harris went to the Champagne

Lounge to kill a witness. Finally, no limiting instruction regarding the allegedly

improper bad acts evidence was requested. (See Trial Tr. at 949.) We believe,

therefore, that Harris would have been convicted even had the allegedly prejudicial

evidence regarding the Champagne Lounge been excluded. See Carter, 929 F.2d at

1296 (stating that a petitioner must show "that absent the alleged impropriety, the

verdict probably would have been different"). Having considered the totality of the

facts, we cannot say that admitting this evidence undermined the fundamental fairness

of the guilt phase of Harris's trial. See McDaniel, 961 F.2d at 1360; Mercer, 844 F.2d

at 587.

Second, the evidence regarding Harris's plans to kill Dale could not have

adversely impacted the penalty phase either. As we explained above, the depravity of

mind instruction used in Harris's case was constitutionally sound. The evidence of

Harris's plans to conduct a ride-by shooting, which was properly before the jury, was
18

more than enough to allow the jury to find that Harris's conduct met the requirements

of that instruction. Similarly, the jury found four other, independent aggravating

circumstances. We believe, therefore, that the evidence relating to Harris's plans to kill

someone at the Champagne Lounge in no way fatally infected or tainted the penalty

phase.

To the extent Harris's arguments invite us to assess the cumulative effects of any

perceived evidentiary errors (see Appellant's Br. at 11), we decline the invitation. We

have held that each due process claim must stand or fall individually. See Griffin v.

Delo, 33 F.3d 895, 905 (8th Cir. 1994), cert. denied, 514 U.S. 1119 (1995); Byrd v.

Armontrout, 880 F.2d 1, 11 (8th Cir. 1989), cert. denied, 494 U.S. 1019 (1990). But

see Hobbs v. Lockhart, 791 F.2d 125, 128 (8th Cir. 1986) (addressing and then

rejecting a section 2254 petitioner's argument that the cumulative effect of admitting

other crimes evidence tainted the fundamental fairness of the entire trial).

In summary, having reviewed the totality of the facts, we cannot say that

admitting into evidence Harris's plans to conduct a drive-by shooting or his activities

with Sabrina Lowe fatally infected the fairness of his trial, thereby depriving Harris of

due process of law. McDaniel, 961 F.2d at 1360. Harris bears the burden of showing

that some prejudice "worked to his actual and substantial disadvantage, infecting his

entire trial with error of constitutional dimensions." United States v. Frady, 456 U.S.

152, 170 (1982). Harris has not met that burden. We deny Harris's request for habeas

relief based on the admission of this evidence.

D. Ineffective Assistance of Trial Counsel

We also granted a certificate of appealability on the question of whether Harris's

trial counsel was constitutionally deficient in failing to adequately investigate and

present the testimony of one Ben Brown. Harris contends that Brown is a disinterested

eyewitness who was willing to testify in support of Harris's self-defense theory. For
19

the reasons explained below, we affirm the district court's denial of habeas relief on this

ground.

To succeed on a claim of ineffective assistance of trial counsel, Harris must show

that his attorney's performance was deficient and that the deficiency prejudiced his

defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). "Counsel's performance

was deficient if it fell 'outside the wide range of professionally competent assistance.'"

Sidebottom, 46 F.3d at 752 (quoting Strickland, 466 U.S. at 690). Prejudice is shown

if "there is a reasonable probability that, but for counsel's unprofessional errors, the

result of the proceeding would have been different." Strickland, 466 U.S. at 694.

"Further, we must examine the attorney's conduct as of the time of the trial and not

view it with the distorting tint of hindsight." Battle v. Delo, 19 F.3d 1547, 1555 (8th

Cir. 1994), op. adhered to as modified on recons., 64 F.3d 347 (8th Cir. 1995), cert.

denied, 517 U.S. 1235 (1996).

Harris asserts that his trial counsel failed to conduct an adequate pretrial

investigation resulting in the failure to present the testimony of Ben Brown. Brown was

partially identified in a police report accompanying a statement that Jaorlath Potts gave

to investigators. (State Postconviction Legal File at 149.) As documented in that

report, Potts identified several witnesses to the Willoughby homicide. The report did

not specifically identify "Ben Brown," but rather listed only "Ben, B/M, 15 years of

age." We know from Brown's testimony at the state postconviction relief hearing and

from an affidavit Brown prepared in 1995 that he would have testified that he saw

Willoughby standing over Harris and reaching toward his waist at the time Harris shot

and killed Willoughby. (See State Postconviction Tr. at 323-24; J.A. at 192-95.)

Brown also claims that after Harris shot Willoughby, Brown was the last person to

leave the house and that he saw a black revolver lying on the floor. (State

Postconviction Tr. at 324-25.)
8

 During his opening statement, the prosecutor commented on the presence of

Jaorlath "Rudi" Potts and his friends. "[T]here may be some testimony that there were

two friends of Rudy Potts there. Who they are, where they are, if they were there at

the time of the shooting, we don't know." (Trial Tr. at 593.) (Potts's nickname is

spelled three different ways—Rudi, Ruddi, and Rudy—in the various portions of the

record.)

9

 Potts testified that he was not deposed until after Harris's trial. (State

Postconviction Tr. at 91.) At oral argument, Harris's habeas counsel asserted that the

Potts deposition occurred shortly before trial. For the purposes of our analysis, we

20

We first consider the reasonableness of trial counsel's conduct to determine if

it fell "outside the wide range of professionally competent assistance." Strickland, 466

U.S. at 690. Trial counsel testified at the postconviction relief hearing, asserting that

Harris never informed him about Ben Brown, and that he called every potential witness

that Harris mentioned to him. (State Postconviction Tr. at 175, 215.) According to trial

counsel, he attempted to contact persons identified in police reports but was not

successful, and even the prosecutor experienced difficulty locating witnesses to the

Willoughby homicide.8 (Id. at 178.) Although Harris maintained at his postconviction

hearing that he told trial counsel about Ben Brown (see id. at 252), the Missouri courts

found that trial counsel was not made aware of Ben Brown's existence. See Harris, 870

S.W.2d at 818. We have carefully reviewed the record and see no reason to conclude

otherwise. See 28 U.S. C. § 2254(d). Moreover, we have previously held that "[a]

first name, or an incorrect last name, in a police report can hardly be the basis for an

ineffective assistance claim when [the defendant] did nothing to assist counsel in

locating those who could have helped his defense." Battle, 19 F.3d at 1555. 

Harris also maintains that trial counsel should have discovered Ben Brown from

the deposition of Jaorlath Potts. In particular, Harris argues that because counsel

deposed Jaorlath Potts, and Brown was with Potts at Michael Taylor's house when

Harris shot Willoughby, counsel should have discovered Ben Brown. This argument

is wholly without merit. It is true that trial counsel deposed Potts,9 and Potts testified
assume that trial counsel deposed Potts before trial.

21

at the postconviction hearing that Brown was with him at Michael Taylor's house.

(State Postconviction Tr. at 84.) Conspicuously missing from Harris's argument,

however, is any factual indication that Potts ever informed trial counsel about Ben

Brown during his deposition, or that Ben Brown might have additional information that

might have furthered Harris's defense. Also missing from Harris's argument is any

showing that trial counsel could have located Ben Brown even were he made aware of

Brown's existence.

For the foregoing reasons, we find no deficiency in trial counsel's failure to locate

Ben Brown and present his testimony at trial. Even were we to assume that trial

counsel's investigation was somehow constitutionally deficient, we conclude that any

such deficiency did not prejudice Harris because there is no "reasonable probability

that, but for counsel's unprofessional errors, the result of the proceeding would have

been different." Strickland, 466 U.S. at 694.

When viewed in light of Harris's own trial testimony, Ben Brown's account of the

events is inconsistent and is of only marginal value at best. For example, Brown

declared in his affidavit that Willoughby was standing over Harris "waiving his arms

around and stuff." (J.A. at 193.) Yet Harris testified that Willoughby was standing on

the steps and leaning over Michael Taylor immediately before Harris shot Willoughby.

(Trial Tr. at 892, 896, 898.) Brown also stated that he saw a revolver on the floor after

the shooting. (J.A. at 194.) Harris, however, testified at trial that he never saw

anything other than a gun handle, never saw Willoughby actually hold a gun, and that

Willoughby placed his hands to his face upon being shot. (Trial Tr. at 895-96, 908.)

No revolver was ever found at the crime scene (see id. at 634-35), nor did any police

report mention such a weapon. Nobody else saw any gun other than the one Harris

used to kill Willoughby.
22

In fact, trial counsel had no reason to try and locate a second weapon because

prior to trial, Harris never told counsel about seeing a gun or any part thereof. Based

on what Harris told trial counsel, the entire self-defense theory rested on Harris seeing

a fire in Willoughby's eyes, and seeing Willoughby move his hand toward his waist.

(See State Postconviction Tr. at 202-03; see also Trial Tr. at 605.) 

Having carefully reviewed the trial and postconviction transcripts, we believe

that Harris's trial counsel zealously advocated in favor of Harris's defense. We find no

deficiency due to trial counsel's failure to investigate Ben Brown. Even assuming that

trial counsel's performance was deficient with respect to investigating Ben Brown, we

find no prejudice. Inconsistencies and similar evidentiary weaknesses leave us unable

to say that a reasonable probability exists that but for trial counsel's alleged failure to

adequately investigate Brown, the result of Harris's trial would have been different. See

Strickland, 466 U.S. at 694. We deny Harris's request for habeas relief on the basis of

ineffective assistance of counsel.

IV.

Having considered all grounds on which we granted a certificate of appealability,

we now affirm the district court's judgment denying Harris's petition for a writ of

habeas corpus.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT